RECORD OF PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           MARCH 9, 2004                  
	DOCKET NUMBER:   AR2003090809

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Luis Almodova		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Ms. Shirley Powell		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, that his name be changed to the name, which is recorded on his birth certificate, which is also his current legal name.

2.  The applicant states, that his legal name is "R----d Ja---e C-----n."  He carried the name "R----d Je---e E-----s" until 22 April 1986.  All his records have been changed except his military records.  He is now disabled but unable to receive benefits because his records reflect his former name rather than his current legal name.

3.  To support his application, the applicant provides a copy of an FD 258, Federal Bureau of Investigation Fingerprint Card; a copy of the birth certificate prepared on 24 March 2003 and issued by the State of Mississippi; a copy of the applicant's DD Form 214, Report of Separation from Active Duty, with an effective date of 7 July 1976; a copy of his DD Form 4, Enlistment Contract – Armed Forces of the United States, with an effective date of 6 July 1972; a 
copy of a marriage license uniting him and his wife, in his former name, on 15 August 1981; a copy of a marriage license uniting him and his wife, on 11 May 1986, in his current legal name; a VA Form 21-4138 (JF), Department of Veterans Affairs - Statement in Support of Claim, dated 29 August 2002; copies of his Social Security Account Number cards with his former and his current legal name; and a copy of a Certificate of Training for the Basic Law Enforcement Course that he completed on 27 August 1986 in his current legal name.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error, which occurred on 7 July 1976.  The application submitted in this case is dated 19 March 2003.  

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Regular Army for 4 years on 6 July 1972.  He served honorably and was released from active duty in the rank and pay grade, Specialist Four, E-4, on 7 July 1976.  On the date he was released from active duty, he had completed 4 years and 2 days active Federal service, with no lost time.

4.  The DD Form 4, Enlistment Record - United States Army, dated 6 July 1972, which was completed on his enlistment in the Regular Army, reflects the name, "R----d Je---e E-----s."

5.  The DD Form 214, which was issued to the applicant at the expiration of his enlistment contract and on his release from active duty, on 7 July 1976, reflects the last name, "R----d Je---e E-----s."  All documents on file in the applicant's service personnel records, to include those documents, which required his written signature, reflect the name "R----d Je---e E-----s."

6.  The applicant was born on 20 April 1952.  At birth, he was given the name 
"R----d Ja---e C-----n."  After he was born, his mother married another man, not his natural father.  He was raised by his stepfather; however, his stepfather did not take legal action to adopt him and give him his own last name of "E-----s."

7.  The applicant used the name "R----d Je---e E-----s" throughout his early life and did not question what his legal last name was.

8.  In 1986, based on another need, the applicant sent for a copy of his birth certificate from the State of Mississippi.  He was informed that there was no record of a birth of an individual born on 20 April 1952 with the same first name and middle name who was given the last name "E-----s" but that he might have been given a different last name at birth.  Based on this information, he contacted his mother to determine the truth about his name.  He found that his last name was in fact "C-----n" and not "E-----s" and that his middle name was spelled 
"Ja---e" and not "Je---e."  He immediately started taking action to change all his records to coincide with the birth record.

9.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part it states that the DD Form 214 is a synopsis of the soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the Regular Army on 6 July 1972, under the name that he thought to be correct, "R----d Je---e E-----s."  Although the applicant's birth name is "R----d Ja---e C-----n", he appropriately served on and was released from active duty under the name "R----d Je---e E-----s."

2.  There is no evidence that he attempted to change his name while he was in the Army.  From the evidence provided by the applicant himself, he continued to use what he felt was his correct name, "R----d Je---e E-----s" until 1986.

3.  The applicant's desire to have his Army records changed is understandable, but there is an insufficient basis for compromising the integrity of the Army's records.  The Army has an interest in maintaining the accuracy of its records for historical purposes.  The data contained in those records should reflect the conditions and circumstances that existed at the time the records were created, and in the absence of a showing of material error or injustice, there is little basis for recommending that the records be changed.

4.  A copy of this Record of Proceedings will be filed in the applicant's service personnel records so that an additional record of his birth name, the name he claims as his current legal name, will be on hand.

5.  Records show the applicant should have discovered the error or injustice now under consideration on 7 July 1976; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 6 July 1979.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

sac___  _  sp    ____  bje____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

		___Samuel A. Crumpler___
		        CHAIRPERSON

INDEX

CASE ID	AR2003090809	
SUFFIX		
RECON		
DATE BOARDED	20040309	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  1021	100.0000	
2.  2	100.0100	
3.		
4.		
5.		
6.